Court extends ‘deliberative process’ to open meetings law

SHERIDAN — A local judge extended the “deliberative process” privilege recently recognized by the Wyoming Supreme Court to rule in Sheridan County School District 2’s favor in a recent court case with The Sheridan Press.

Press attorney Bruce Moats said he believes the extension of the ruling will have lasting impacts on Wyoming’s open government process.

The Sheridan Press filed a petition to the court in February for the release of executive session meeting minutes related to a proposed $45 million multi-purpose recreational facility discussed by the school district in closed meetings.

Information about the facility was first brought to the public’s attention at a semi-public forum regarding educational goals in Sheridan County in January. At that forum, then Sheridan Mayor Dave Kinskey said he felt the $45 million could be better spent on the education of the community’s children.

Following several public information requests to the school district, as well as Sheridan College, documents showed that the school district was considering a bond issue as soon as the spring of 2014 for the project.

In its arguments to the court, SCSD2 said the facility had been discussed in public in regards to the district’s needs for better and more expansive locker rooms, indoor practice facilities and other recreational needs. But, no specific reference to the facility itself was ever discussed in a public school board meeting. The Press found no reference to the specific facility in meeting minutes of the school board dating back to January 2012.

The conversations held in executive session regarding the project, the school district claimed, fell under several exemptions provided for in Wyoming law — real estate, personnel matters, pending litigation, confidential information and student expulsion. Judge William Edelman of 4th Judicial District Court agreed with the school district in his summary judgment of the case released Thursday.

“…the Court finds that all matters discussed in the executive sessions fits squarely within what may be kept confidential pursuant to the plain language of the relevant statutory section,” the judgment stated.

Moats expressed concern, though, that the court does not say which specific exemptions applied.

“Neither the newspaper nor the public knows what the board said about its discussions on the facility in the minutes,” Moats said. “This, combined with the brevity of the court’s finding, makes it difficult to fully understand the ruling.”

In his decision, Edelman also referenced the non-disclosure of certain documents in the Wyoming Supreme Court’s recent decision in Aland v. Mead, where the Court stated that a common law deliberative process privilege is incorporated in the Wyoming Public Records Act.

The Supreme Court ruling established a three-prong test to determine whether records and documents may be withheld from public disclosure — if it is interagency or intraagency communication, pre-decisional and deliberative communication or not in the public interest to be disclosed.

Edelman extended this “deliberative process” language to the Wyoming Public Meetings Act.

“The deliberative process privilege was not briefed by either party,” Moats said. “The court said the public records and public meetings acts are analogous and essentially grafted the deliberative process privilege on to the Public Meetings Act.

“I fear the result is that governing bodies may go into executive session for any discussion that is ‘pre-decisional and deliberative,’ regardless of whether it fits any of the express provisions for executive session in the Public Meetings Act,” Moats continued. “This would allow nearly any discussion that might lead to a decision to be held in executive session. I believe that would fit the great majority of discussions held by governing bodies.”

Moats added that there is case law from other states that public records acts do not control what must be public under public meetings acts. Moats also said he reads the Supreme Court’s decision to limit the deliberative process privilege to executive government officials, not legislative bodies.

Kristen Czaban joined The Sheridan Press staff in 2008 and covered beats including local government, cops and courts and the energy industry. In 2012, she was promoted and now serves as the managing editor for The Press. Czaban has a journalism degree from Northwestern University.

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